# Petition for Writ of Certiorari — Lockhart v. Hofstra University

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 817

## Text

(i) Supreme Court, U.S.
/ FILED

041558 May 18 200

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er: Pil a es es SY Oe ond wk

No.

In the
Supreme Court of the Anited States

LINDBIRG LOCKHART,
Petitioner,

Vv.
HorstrA UNIVERSITY,

Respondent.

On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ALAN E. WOLIN
Counsel of Record

WoLin & WOLIN

420 JERICHO TURNPIKE
JERICHO, New York 11753
(516) 938-1199

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTION PRESENTED

The courts below did not adhere to this Court’s established
principles concerning summary judgment.

il

LIST OF PARTIES

Petitioner
The petitioner, Lindbirg Lockhart, has no corporate
affiliations.

Respondent
The respondent is Hofstra University.

ili

TABLE OF CONTENTS
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NII on Sv ds ecésdcieeent.
Reasons for Granting the Writ .............. bits

1. The Courts below Did Not Adhere to this Court’s
Established Principles Concerning Summary
ES OAS pow GE 5 beled wha we bio bas

A. The Applicable Legal Standard ............

B. Petitioner Established That the Complained of
Actions Were Adverse Employment Actions . .

9

iV

C. Petitioner Established That the Complained of
Actions Occurred under Circumstances Giving

Rise to an Inference of Discrimination ....... 10
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POPPE OCTET aS ee TE TT Ce ee ee la

Appendix A

Summary Order of the United States Court of Appeals

for the Second Circuit dated February 18, 2005 ... la
Appendix B

Decision and Order of the United States District Court
for the Eastern District of New York dated March 29,
BU aid ale ge he oe cr ee a Sa

Appendix C

Judgment of the United States District Court for the
Eastern District of New York dated March 29,

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Vv
TABLE OF CITED AUTHORITIES

Cases

Adickes v. S.H. Kress & Co.,
wee COPED 66.6 os oe chee 6

Anderson v. Liberty Lobby, Inc.,
S75 UB. kh 68 oa 7

Binder v. Long Island Lighting Co.,
wad Oe BO? COGN, BOUND ib ak ea kok ees 8

Campbell v. Grayline Air Shuttle Inc.,
930 F.Supp. 794 (E.D.N.Y. 1996) ............ 9

Celotex Corp. v. Catrett,
OFF Ua Sat EE bse ee 6

Chambers v. TRM Copy Centers Corp.,
43 O06 cee Ge. TO oes HORS 8

Dortz v. City of New York,
904 F.Supp. 127 (S.D.N.Y. 1995) ............ 10

Galadya v. NYC Board of Education,
202 F.36 636 (id Cie. 2000). i cence snn 9

Greenway v. Buffalo Hilton Hotel,
4S F268 Se es Ee ki es He eee 8

McDonnell Douglas Corp. v. Green,
045 OD. Peer 6 ank a boa e eee 7,8

vi

Medwid v. Baker,

752 F.Supp. 125 (S.D.N.Y. 1990) ..........

Morris v. Lindau,

496 F.3d 102, 110 (2d Cir. 1999) ..........

Pazamickas v. NYS Office of Mental Retardation,

963 F.Supp. 190 (N.D.N.Y. 1997) .........

Preda v. Nissho Iwai Am. Corp.,

128 5.36 TEP GAG CR. FRG ccc vescsesecs

Texas Department of Community Affairs v. Burdine,
| eee rr re.

United States v. Diebold, Inc.,

369 U.S. 654, (1962) (per curiam) ..........

S Rul b Conetietionst Raake

» he hE Ber prroe re es rt ee ee

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari to
review the Summary Order of the United States Court of
Appeals for the Second Circuit in this case.

OPINIONS BELOW

To petitioner’s knowledge, previous opinions rendered in
this case have not been reported.

JURISDICTION

The Summary Order of the United States Court of Appeals
for the Second Circuit was rendered on February 18, 2005.
No rehearing was requested.

This Court has jurisdiction to review the judgment or
decree in question by writ of certiorari pursuant to 28 U.S.C.
§1254(1).

STATUTORY PROVISION INVOLVED

The statutory provision involved is Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq.

42 U.S.C. §2000e-2(a) provides:
(a) Employer practices

It shall be an unlawful employment practice for an
employer

(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against

2

any individual with respect to his
compensation, terms, conditions, or privileges
of employment, because of such individual’s
race, color, religion, sex, or national origin;
or

(2) to limit, segregate, or classify his employees or
applicants for employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individuai’s race, color, religion, sex, or national
origin.”

STATEMENT OF THE CASE
A. Relevant Facts

Petitioner is a member of the Black race. Between
December, 1978 and August, 1990, petitioner was employed
at respondent by Trans World Maintenance Corporation, a
maintenance company which provided custodial services to
respondent. While employed by Trans World, petitioner
performed custodial work.

While employed by Trans World, petitioner was a
member of Local 144 and, prior to 1990, served as Chief
Shop Steward. As Chief Shop Steward, petitioner had
oversight for grievances concerning the members of Local
144 and had responsibility, in consultation with management,
for assigning overtime or selecting people for overtime.
During that time period, petitioner selected people for
overtime based upon seniority. There was one seniority list
of custodians which covered the entire Hofstra Campus.

3

In August, 1990, petitioner became employed by
respondent as a custodian and has been employed by
respondent continuously ever since.

In 1988, petitioner and the other custodians became
members of Local 424 of the United Industry Workers. At
the time, petitioner moved from Chief Shop Steward to
Assistant Shop Steward. Petitioner was succeeded by Robert
Macaluso as Chief Shop Steward. Petitioner then, while
Assistant Shop Steward, only had the responsibility of
selecting people for overtime in the absence of Mr. Macaluso.

Petitioner’s duties and responsibilities are the same as they
were when he was employed by Trans World. In general,
petitioner is responsible for buildings in the area designated
as “South Campus”, more particularly the Law School.
There are approximately thirty-six (36) custodians assigned to
the South Campus.

Subsequent to 1990, petitioner reported directly to
Michael Rocchio, Assistant Director of Physical Plan
Department. He continues to report to Mr. Rocchio. Mr.
Rocchio, in turn, reported to and continues to report to
Kenneth Tyler, Associate Director of Physical Plan
Department.

Pursuant to the Collective Bargaining Agreement between
| respondent and Local 424, overtime is to be distributed to
custodians, including petitioner, on a voluntary basis, by
seniority. In accordance with this Collective Bargaining
Agreement, overtime is supposed to be assigned in the order
of seniority provided for in an official overtime list which is
. posted every week. This list contains those who wish to be
considered for overtime. Individuals who wish not to be
chosen are not on the list.

I leanne

4

Messrs. Macaluso, Rocchio and Tyler are all Caucasian.
Subsequent to 1990, Mr. Rocchio, in consultation with the
Union, which provides the names of employees, assigned
people for overtime. Mr. Macaluso and Mr. Rocchio then
began regularly approving overtime for custodians in
disregard of the rotation provided for in the official overtime
list and by giving overtime to individuals not on the list.

The actions of respondent and its agents favored
Caucasian and Hispanic custodians at the expense of Black
custodians, such as petitioner. This problem began when Juan
Perez became Foreman. Respondent ensured that Caucasians
and Hispanics were favored.

Custodians such as Juan Perez, Joseph Montura, Pedro
LaRosa, James Cameron, Jim Campbell and Vincent
Avallone, all of whom are Caucasian or Hispanic, were
favored and received overtime even if they were not on the
list.

Respondent’s attempt to justify its actions by claiming that
some of these individuals could receive overtime in disregard
of the overtime list because they had _ supervisory
responsibilities or special skills is without merit and
pretextual. In fact, Mr. Avallone is not even licensed to
repair vacuums.

Petitioner has received his fair share of overtime within
the past two years. However, before that, petitioner did not.
Although the rotation based upon seniority is supposed to be
based upon the entire campus, respondent has improperly
attempted to circumvent the selection process by having
different lists for particular portions of the campus and for
different shifts. There is currently no campus-wide list.
There are different numbers of custodians on each list.

ee ar ee os

5

Petitioner disputes the overtime hours that respondent
claims he worked. A review of the time sheets offered by
respondent will reveal that those off the list, such as Vincent
Avallone, received a disproportionate amount of overtime.

Petitioner complained about the way overtime was being
distributed. Petitioner filed grievances with the Union
regarding his overtime complaints. Respondent did not
remedy petitioner’s grievances.

Respondent concedes that there are inequities in the
amount of overtime «ach employee received.

B. Proceedings Below

Petitioner brought this action alleging that his employer,
respondent, Hofstra University, had violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et
seq., under the theory of racial discrimination.

Respondent moved for summary judgment claiming (1)
petitioner could not establish a prima facie case of race ©
discrimination because there was no adverse employment
action occurring under circumstances giving rise to an
inference of discrimination; (2) petitioner could not show that
respondent’s alleged legitimate, non-discriminatory reasons
for all actions taken were a pretext for discrimination.
Petitioner duly opposed respondent’s motion.

On March 29, 2004, the Honorable Arlene R. Lindsay,
United States Magistrate Judge, issued a Decision and Order
granting respondent’s motion. [Pet. App. 22a]

A Judgment dated and entered March 29, 2004 followed.
[Pet. App. 5a] Judgment was entered ordering and adjudging

ee ne ee

6

that “plaintiff take nothing of defendant and that the
defendant’s motion for judgment is granted; and that the
complaint is dismissed.”

Petitioner duly appealed the District Court’s determination
to the United States Court of Appeals for the Second Circuit.
In a Summary Order dated February 18, 2005, the Court of
Appeals affirmed the judgment of the District Court. In so
doing, the Court of Appeals held that petitioner “failed to put
forward facts that satisfy the third and fourth requirements of
the prima facie case.” More specifically, the Court concluded
that petitioner had failed to sufficiently establish that he
suffered an adverse employment action under circumstances
that give rise to an inference of discriminatory intent.

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This Petition follows.

3
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3

REASONS FOR GRANTING THE WRIT

1. The Courts below Did Not Adhere to this Court’s
Established Principles Concerning Summary Judgment

A motion for summary judgment may not be granted
unless the court determines that there is no genuine issue of
material fact to be tried and that the facts as to which there is
no such issue warrant judgment for the moving party as a
matter of law. See, e.g., Fed.R.Civ.P. 56(c); see generally,
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
burden of showing that no genuine factual dispute exists rests
on the party seeking summary judgment, see, e.g., Adickes v.
S.H. Kress & Co., 398 U.S.144, 157 (1970), and in assessing
the record to determine whether there is a genuine issue as to
any material fact, the court is required to resolve all
ambiguities and draw all factual inferences in favor of the
party against whom summary judgment is sought, see, e.g.,

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
_ The inferences to be drawn from the underlying facts revealed
in materials such as affidavits, exhibits, interrogatory answers
and depositions must be viewed in the light most favorable to
the party opposing the motion. See, e.g., United States v.
Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam).

The courts below, instead of determining whether there
are issues to be tried, actually tried those issues. Petitioner
respectfully submits that, in doing so, the courts below did
not adhere to the dictates of this Court with reference to the
appropriate summary judgment standards.

A. The Applicable Legal Standard

This Court set forth the standards to be applied in this
action in Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 252-53 (1981) (citing and quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).

In Burdine, this Court held:

“First, the plaintiff has the burden of proving by a
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to the
defendant ‘to articulate some legitimate, non-
discriminatory reason for the employee’s rejection.’
Third, should the defendant carry this burden, the
plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true
reason but were a pretext for discrimination.” Jd. at
252-53.

By establishing a prima facie case, a plaintiff “creates a
presumption that the employer unlawfully discriminated
against the employee.” Burdine, supra. at 254. Making out
a prima facie case “is not a demanding burden.” Greenway
v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). If
a plaintiff successfully establishes a prima facie case, the
burden then shifts to the defendant “to articulate some
legitimate, non-discriminatory reason for the employer’s
[action].” McDonnell Douglas, supra. at 802. This reason
must be “clear and reasonably specific.” Binder v. Long
Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

If the defendant carries this burden, the plaintiff must then
prove “by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.” Burdine, supra. at 248.
A plaintiff can establish pretext “either directly, by
persuading the court that a discriminatory reason more likely
‘motivated the employer, or indirectly, by showing that the
employer’s proffered explanation is unworthy of credence.”
Burdine, supra. at 156.

In order to establish a prima facie case of race/color
discrimination, a plaintiff must show (1) that he/she belongs
to a protected class; (2) that he/she was performing his/her
duties satisfactorily; (3) that he/she suffered an adverse
employment action; and (4) that the adverse employment
action occurred under circumstances giving rise to an
inference of discrimination on the basis of his/her membership
in that class. Chambers v. TRM Copy Centers Corp., 43 F.3d
29, 36-37 (2d Cir. 1994). In moving for summary judgment,
the respondent herein alleged and the courts below agreed that
petitioner could not meet the third and fourth elements.

9

B. Petitioner Established That the Complained of
Actions Were Adverse Employment Actions

Under this Court’s standard for summary judgment, there
were triable issues as to whether the complained of actions
were adverse employment actions. In Galadya v. NYC Board
of Education, 202 F.3d 636 (2d Cir. 2000), the Second
Circuit recognized that “less flagrant reprisals” than
termination or a reduction in wages and benefits may be
sufficient. Jd. at 640. The key, said the court, is to
determine whether the alleged action creates a “materially
significant disadvantage.” Id. at 649; see also, Campbell v.
Grayline Air Shuttle Inc., 930 F.Supp. 794 (E.D.N.Y. 1996).
In Campbell, the court, citing Medwid v. Baker, 752 F.Supp.
125, 136-37 (S.D.N.Y. 1990), also noted that “a material
adverse change is one that has an attendant negative result, a
deprivation of a position or an opportunity.” In determining
whether there is an attendant negative result, one must look at
the totality of the circumstances. Campbell, supra. at 802-
803.

In Morris v. Lindau, 496 F.3d 102, 110 (2d Cir. 1999),
the Second Circuit also noted lesser actions may be considered
adverse employment actions, citing as examples” negative
evaluation letters, express accusations of lying, assignment of
lunchroom duty, reduction of class preparation periods,
failure to process teacher’s insurance forms, transfer from
library to classroom teaching as an alleged demotion, and an
assignment to classroom on fifth floor which aggravated
teacher’s physical disabilities.” Jd. In addition, the Second
Circuit has held that adverse employment actions are not
limited to “pecuniary emoluments.” Preda v. Nissho Iwai
Am. Corp., 128 F.3d 789, 791 (2d Cir. 1997).

10

An adverse employment action has been further defined as
one which “affects the terms, privileges, duration or
conditions of employment.” Dortz v. City of New York, 904
F.Supp. 127, 155 (S.D.N.Y. 1995), Pazamickas v. NYS
Office of Mental Retardation, 963 F.Supp. 190 (N.D.N.Y.
1997).

Therefore, petitioner respectfully submits that the alleged
denial of overtime. is an adverse employment action. The
lower courts should have found that whether petitioner
actually received more overtime than others and rejected
opportunities for overtime, in the face of his denials, were
triable issues of fact and should not have resulted in a finding
that no adverse employment action occurred.

C. Petitioner Established That the Complained of
Actions Occurred under Circumstances Giving
Rise to an Inference of Discrimination

Petitioner sufficiently established that the complained of
actions occurred under circumstances giving rise to an
inference of discrimination. We have seen that petitioner is
a member of the Black race. Pursuant to the Collective
Bargaining Agreement between respondent and Local 424,
overtime is to be distributed to custodians, including |
petitioner, on a voluntary basis, by seniority. In accordance |
with this Collective Bargaining Agreement, overtime is
supposed to be assigned in the order of seniority provided for
in an Official overtime list which is posted every week. This
list contains those who wish to be considered for overtime. |

Individuals who wish not to be chosen are not on the list.

Messrs. Macaluso, Rocchio and Tyler are all Caucasian.
Subsequent to 1990, Mr. Rocchio, in consultation with the
Union, which provides the names of employees, assigned

.

11

people for overtime. Mr. Macaluso and Mr. Rocchio then
began regularly approving overtime for custodians in
disregard of the rotation provided for in the official overtime
list and by giving overtime to individuals not on the list.

The actions of respondent and its agents favored
Caucasian and Hispanic custodians at the expense of Black
custodians, such as petitioner. This problem began when Juan
Perez became Foreman. Respondent ensured that Caucasians
and Hispanics were favored.

Custodians such as Juan Perez, Joseph Montura, Pedro
LaRosa, James Cameron, Jim Campbell and Vincent
Avallone, all of whom are Caucasian or Hispanic, were
favored and received overtime even if they were not on the
list.

Respondent’s attempt to justify its actions by claiming that
some of those individuals could receive overtime in disregard
of the overtime list because they had supervisory
responsibilities or special skills was without merit and
pretextual. In fact, Mr. Avallone is not even licensed to
repair vacuums.

Although the rotation based upon seniority is supposed to
be based upon the entire campus, respondent has improperly
attempted to circumvent the selection process by having
different lists for particular portions of the campus and for
different shifts. There is currently no campus-wide list.
There are different numbers of custodians on each list.

Petitioner disputed the overtime hours that respondent
claimed he worked. A review of the time sheets offered by
respondent revealed that those off the list, such as Vincent
Avallone, received a disproportionate amount of overtime.

12

Respondent concedes that there are inequities in the amount
of overtime each employee received.

Petitioner respectfully submits that all of the foregoing
facts, which are supported in the record, went beyond
petitioner’s own “belief.” As such, there were triable issues
as to whether petitioner established whether the complained
of actions occurred under circumstances giving rise to
discrimination.

The issue of whether petitioner received more overtime
than others or that he refused overtime assignments, in the
fact of petitioner’s denials, should have been considered an
issue of fact. The courts below, based upon this Court’s
precedents, should not have decided this issue upon a motion
for summary judgment.

CONCLUSION

For the foregoing reasons, the Petition for Writ of |
Certiorari should be granted.

Respectfully submitted,

WOLIN & WOLIN, ESQS.
By: Alan E. Wolin, Esq.
Attorney for Petitioner

420 Jericho Turnpike, #215
Jericho, New York 11753
Telephone: (516) 938-1199

— —s > ¥

CRITI ST

la

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 04-2290

[February 18, 2005]

LINDBIRGH LOCKHART,
Plaintiff-Appellant,

¥.

HOFSTRA UNIVERSITY,
Defendant-A ppellee.

PRESENT: HON. JOSEPH M. McLAUGHLIN, HON.
PETER W. HALL, HON. JOHN R. GIBSON, * Circuit
Judges.

* The Honorable John R. Gibson, Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by
designation.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the

2a

judgment of said district court be and it hereby is
AFFIRMED.

Plaintiff-Appellant Lindbirgh Lockhart appeals from a
March 29, 2004 judgment of the United States District Court
for the Eastern District of New York (Arlene R. Lindsay,
Magistrate Judge) granting summary judgment to defendant-
appellee Hofstra University. On appeal, Lockhart argues that
the district court erred when it concluded that Lockhart could
not establish a prima facie case for discrimination based on
race in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e-2000e-17. Familiarity with
the facts and proceedings below is assumed. We affirm.

We review a district court’s grant of summary judgment
de novo. See Okemo Mountain, Inc. v. U.S. Sporting Clays
Ass'n, 376 F.3d 102, 104 (2d Cir. 2004). In an employment
discrimination case, a plaintiff has the burden of showing at
the outset that (1) he belongs to a racial minority; (2) he
applied and was qualified for the job; (3) he suffered an
adverse employment action; and (4) the adverse employment
action occurred under circumstances that give rise to an
inference of discriminatory intent. See Sanders v. New York
City Human Res. Admin. , 361 F.3d 749, 755 (2d Cir. 2004).

Lockhart failed to put forward facts that satisfy the third
and fourth requirements of the prima facie case. An “adverse
[employment] action is one that affects the terms, privileges,
duration or conditions of employment.” Yerdon v. Henry, 91
F.3d 370, 378 (2d Cir. 1996). The only employment
statistics on Lockhart’s overtime before the district court came
from Hofstra. On a motion for summary judgment, a court
ordinarily must construe all evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in its favor. Quinn v. Green Tree Credit Corp.,

LS

3a

159 F.3d 759, 764 (2d Cir. 1998). Here, however, Hofstra
offered evidence of Lockhart’s overtime hours and that of his
co-workers, and Lockhart offered no contrary evidence.
Thus, it was proper for the district court to rely on Hofstra’s
figures. Goenaga v. March of Dimes Birth Defects Found., 51
F.3d 14, 18 (2d Cir. 1995) (“When the defendant moves for
summary judgment on the ground that there is an absence of
evidence to support this essential element, the plaintiff's
burden of producing such evidence in opposition to the
motion is de minimis. Nonetheless, the plaintiff cannot meet
this burden through reliance on unsupported assertions. ”)
(internal citations omitted). As Hofstra’s figures make clear,
Lockhart worked more overtime hours between 1998 and
2001 than did his co-workers, notably more than all but one
of his white co-workers. Furthermore, Lockhart was offered
certain emergency overtime opportunities and declined to
accept them. Thus, he cannot establish that he has suffered an
adverse employment action.

Lockhart also fails to allege facts that would support an
inference of racially discriminatory intent. Lockhart is black,
and he alleges that his superiors ignored a seniority-based
overtime assignment list and instead favored Hispanic and
white custodians in handing out overtime assignments. He
alleges that this practice is discriminatory regardless of the
actual hours worked. These opportunities, however, which
Lockhart alleges were wrongly diverted to his Hispanic and
white co-workers, were the very overtime opportunities for
which he declined to be considered. Thus, the facts he alleges
raise no inference of discriminatory intent.

We have carefully considered Lockhart’s remaining
arguments and find them to be without merit.

4a

For the reasons set forth above, the judgment of the
district court is hereby AFFIRMED.

Sa

APPENDIX B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

CV 01-6547 (ARL)

[March 29, 2004]

LINDBIRG LOCKHART,
Plaintiff,

V.

HOFSTRA UNIVERSITY,

)
)
)
)
)
)
Defendant. )
. 2

DECISION AND ORDER

Plaintiff Lindberg Lockhart has brought this action against
defendant Hofstra University (“the University”) alleging that
the defendant discriminated against him in the assignment of
overtime on account of his race in violation of the Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e, et seq. (Compl. {4 1, 14, 20-23).

Presently before the court is defendant’s motion for
summary judgment pursuant to Federal Rule of Civil
Procedure 56. The parties have consented to the disposition
of this action by a Magistrate Judge pursuant to 28 U.S.C.

6a

§ 636(c). For the reasons set forth below, the motion is
GRANTED.

I. The Undisputed Facts'

Plaintiff is an African-American employed by the
University as a custodian in its Physical Plant Department.
(Compl. at 44 14, 16; Pl. Dep. at 13; Def. 56.1 Statement at
{ 2). He is responsible for the cleaning and maintenance of
the building located on the University’s South Campus. (PI.
Dep. at 9-10; Def. 56.1 Statement at 4 3; P1.56.1 Statement
at ¢ 13). Plaintiff has held this position since 1990 and has
continuously reported to Michael Rocchio, Assistant Director
of the Physical Plants Department at the University. (Pl. Dep.
at 21-22; Def. 56.1 Statement at ¢ 4; P1.56.1 Statement at
q 15). Mr. Rocchio is Caucasian. (Pl. Aft. at 1 22; Rocchio
Dep. at 18). In addition to Mr. Rocchio, there are six other
custodial managers, each with responsibility for his own crew
of custodians. (Tyler Dep. at 9; Def. 56.1 Statement at { 7).

The custodial workforce at the University is unionized.
(Tyler Decl. at 4; Def. 56.1 Statement at ¢ 9; PI. 56.1
Statement at { 8). The collective bargaining agreement (“the
CBA”) governing the employment relationship between the
University, and the union members, including the plaintiff,
has an express overtime provision. (Compl. at { 18; Ex. 1 to

' Pursuant to Local Civil Rule 56. l(a), defendant has submitted a
statement of material facts as to which it contends that there is no
genuine issue to be tried. In response, plaintiff has submitted a
counter-statement pursuant to Local Civil Rule 56. 1(b) that fails to
address all of the facts set forth in defendant’s statement.
Accordingly, those factual averments that have not been
controverted by plaintiff's counter-statement are deemed admitted
pursuant to Local Civil Rule 56. l(c).

Ta

the Decl. of Aimee M. Florin; Def. 56.1 Statement at 416;
P1.56.1 Statement at { 17-18). The CBA provides, in
relevant part, that “[o]vertime shall be computed on a daily
and weekly basis .... The Chief Shop Steward shall divide any
overtime in conjunction with management on a voluntary
seniority basis.” (Def. 56.1 Statement at ¢ 17; PI. 56.1
Statement at ¢ 17). The CBA does not require that the
University maintain a list containing the names of employees
ranked by seniority from which the overtime assignments are
made. (P1. Dep. at 124-26; Def. 56.1 Statement at ¢ 18).
Likewise, the CBA is silent on whether the individual selected
for a particular overtime assignment should be the most senior
on a campus-wide basis or by location worked. (Ex. 1 to PI.
56.1 Statement).

A. Process By Which Overtime Is Assigned

Each of the seven custodial managers maintains his own
seniority-based overtime list. (Roccio Dep. at 3 1, 33; Def.
56.1 Statement at 4 29; Tyler Dep. at 13). According to
defendant, multiple lists are used because custodians provide
coverage seven days a week, 24 hours a day and if only one
list were used, individuals would often have to decline an
Overtime assignment because it would conflict with their
regular work hours. (Tyler Dep. at 14-15, 41; Tyler Decl. at
q 11 ; Def. 56.1 Statement at { 30). In addition, defendant
states that multiple lists are used so that custodial managers
can assign overtime jobs to individuals in their regular work
areas: (Tyler Dep. at 41-42; Tyler Decl. at { 13).

When overtime hours are available, the custodial manager
requests from the Union a number of people to work that
overtime assignment. The Union, in conjunction with the
custodial manager, then compiles a list of individuals who
will work the requested overtime. (Tyler Dep. at 13; Rocchio

8a

Dep. at 29, 37; Def. 56.1 Statement at | 25, P1.56.1
Statement at ¢ 21). The custodial manager then assigns the
individuals to the particular overtime assignment. (Rocchio
Dep. at 26; Def. 56.1 Statement at { 25).

There are exceptions when the seniority-based overtime
lists are not utilized in assigning overtime. (Rocchio Dep. at
43-44; Def. 56.1 Statement at { 33). For example, defendant
asserts that the custodial foreman is regularly required to
oversee certain Overtime jobs and receives overtime pay for
such work but is not listed on the seniority-based lists.
(Rocchio Dep. at 58-59: Tyler Dep. at 28-29; Tyler Decl. at
q 15; Def. 56.1 Statement at { 35). Also, defendant claims
that individuals with special skills, such as equipment repair,
may receive overtime assignments even if they are not
included on the seniority-based overtime lists. (Rocchio Dep.
at 58-59; Tyler Dep. at 28-29; Tyler Decl. at { 15; Def. 56.1
Statement at 4 36). In addition, according to defendant, when
there are a limited number of custodians who work in a
particular area of the campus and that area consistently
generates overtime assignments, those individuals may
regularly be offered the overtime assignments in their work
area irrespective of the seniority-based overtime lists.
(Rocchio Dep. at 55-56; Def. 56.1 Statement at { 34).

B. Plaintiff's Overtime Assignments

From 1998-2001, the plaintiff worked a total of 1156.25
overtime hours. (Tyler Decl. at ¢ 17 and Ex. 1; Def. 56.1
Statement at ¢ 19). The average number of overtime hours
during that time period for plaintiff's fourteen Hispanic co-
workers was 1150 hours. (Tyler Decl. at ¢ 18 and Exs. 1-2;
Def. 56.1 Statement at { 20). During that same time period,
the average number of overtime hours for plaintiff's fourteen
Caucasian co-workers was 420 hours. (Tyler Decl. at { 19

9a

and Exs. 1-2; Def. 56.1 Statement at ¢ 21). The average
number of overtime hours for the African-American
custodians assigned to the South Campus, including plaintiff,
was 703.18 hours. (Exs. 1-2 annexed to the Tyler Decl.).

In addition to the overtime hours actually worked, plaintiff
was offered the opportunity to work “off-list” overtime by the
Chief Shop Steward, but declined. (Def. 56.1 Statement at
q 38). Plaintiff was also included on the “emergency”
overtime list which provided him with the opportunity to
work additional overtime assignments. (/d. at 4 39).
However, he requested that he be removed from that list.
(Id.).

C. Plaintiff's Union Membership

From 1978 to 1990, plaintiff was employed by Trans
World Maintenance Corporation, a company that provided
custodial services to the University. (P1.56.1 Statement at
q 2; Def. 56.1 Statement at { 1). During that time, he served
as Chief Shop Steward of Local 144 and had responsibility,
in consultation with management, for assigning overtime or
selecting people for overtime. (/d. at 44 4-5; Def. 56.1
Statement at ¥ 10). Plaintiff selected people for overtime
based upon seniority and referred to the seniority list that
covered the entire Hofstra campus. (Id. at { 6). In 1988, the
custodians working at the University, including plaintiff,
became members of Local 424 of the United Industry
Workers. (/d. at 18).

In August of 1990, plaintiff became employed directly by
the defendant and moved from Chief Shop Steward to
Assistant Shop Steward. (/d. at {4 7, 9; Def. 56.1 Statement
at ¢ 2, 13). As Assistant Shop Steward, plaintiff was
responsible for selecting people for overtime only in the

10a

absence of the Chief Shop Steward. (/d. at { 11).
Approximately one year later, plaintiff resigned from the
Assistant Shop Steward position. (Def. 56.1 Statement at {
14).

In February, 1996, plaintiff filed a grievance with the
Union complaining about the distribution of overtime. (Jd. at
4 35; Def. 56.1 Statement at { 40; see also Ex. G to the
Lockhart Aff.). In that grievance, plaintiff complained that,
for the past four years, “off-list” overtime had been given to
six particular individuals in violation of the collective
bargaining agreement. (Def. 56.1 Statement at { 41; Ex. G.
to the Lockhart Aff.). Of those named as having received
preferential treatment with respect to the assignment of
overtime, there were two African-Americans, Jimmy Adams
and Michael Black. (Ex. G to the Lockhart Aff.; Def. 56.1
Statement at 42.). According to plaintiff, his grievance was
not remedied. (Pl. 56.1 Statement at 4 36).

II. The Plaintiff's Claims

Plaintiff claims that, beginning in 1998, defendant
regularly approved overtime assignments for custodians in
disregard of the rotation provided for in the official overtime
list.2 (Compl. at ¢ 19). This distribution of overtime
assignments, plaintiff alleges, intentionally favors Caucasian
and Hispanic custodians at the expense of African-Americans.

* It is important to note that plaintiff concedes that “he has received
his fair share of overtime within the past two years” and challenges
only the assignment of overtime from 1998 to 2001. (PI. Dep. at
40; P1.56.1 Statement at { 28).

lla

Accordingly, plaintiff filed a charge of discrimination with
the New York State Division of Human Rights (“NYSDHR”)
on December 4, 1998. (Compl. at { 6). The charge was dual
filed with the Equal Employment Opportunity Commission
(“EEOC”). (Id.). On May 22, 2001, after a fact finding
hearing, the NYSDHR dismissed the charge and issued a
finding of No Probable Cause. (Def. 56.1 Statement at { 50).
On July 11, 2001, the EEOC issued a “Notice of Right to
Sue” and plaintiff commenced this action on October 3, 2001.
(Compl. at { 8).

DISCUSSION
I. Standards Governing a Motion for Summary Judgment

A motion for summary judgment may be granted only
when it is shown “that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lang v.
Retirement Living Pub. Co., 949 F.2d 576,580 (2d Cir.
1991).

The party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis for
its motion,” and identifying which materials “it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323; see also Trebor Sportswear Co. v.
The Ltd. Stores, Inc., 865 F.2d 506.511 (2d Cir. 1989). The
substantive law governing the case will identify those facts
that are material, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc, 477 U.S. 242,248, 106 S. Ct. 2505,
2510 (1986).

12a

Once the moving party has come forward with support
demonstrating that no genuine issue of material fact remains
to be tried, including pleadings, depositions, interrogatory
answers, and affidavits, the burden shifts to the non-moving
party to provide similar support setting forth specific facts
about which a genuine triable issue remains. See Fed. R. Civ.
P. 56(e); see also Anderson, 477 U.S. at 250, 106 S. Ct. at
2511; Borthwick v. First Georgetown Sec., Inc., 892 F.2d
178, 181 (2d Cir. 1989). The court must resolve all
ambiguities and draw all reasonable inferences in favor of the
non-moving party. Anderson, 477 U.S. at 254-55, 106 S. Ct.
2513. Moreover, the court’s role on a motion for summary
judgment “in short, is confined.., to issue-finding; it does not
extend to issue-resolution.” Gallo v. Prudential Residential
Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994);
see also Consarc Corp. v. Marine Midland Bank, N.A., 996
F.2d 568,572 (2d Cir. 1993).

In evaluating the record to determine whether there is a
genuine issue as to any material fact, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255,106
S. Ct. at 2513. “If, as to any issue on which summary
judgment is sought, there is any evidence in the record from
any source from which a reasonable inference could be drawn
in favor of the nonmoving party, summary judgment is
improper.” Chambers v. TRM, 43 F.3d 29, 37 (2d Cir.
1994).

In a discrimization case, the court must examine “the
entire record to Gesermine whether the plaintiff could satisfy
his ‘ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff.’”
Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000)

13a

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133,143,120 S.Ct. 2097, 2106 (2000)).

II. Defendant’s Motion

Defendant moves for summary judgment contending that
plaintiff cannot establish a prima facie case of race
discrimination under Title VII. Defendant also asserts,
assuming plaintiff can establish a prima facie case, that it has
set forth a legitimate, nondiscriminatory reason for the
manner in which overtime is assigned and plaintiff has not
offered any competent evidence to show that defendant’s
legitimate nondiscriminatory reason was _ pretextual.
Accordingly , defendant contends that it is entitled to summary
judgment and plaintiff's complaint should be dismissed in its
entirety.

A. Title VII Standards

Plaintiff's Title VII claim of discriminatory treatment on
account of his race is analyzed pursuant to the three-step
burden shifting test of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04, 93 S. Ct. 1817, 182.4-25 (1973),
Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248,252-53, 101 S. Ct. 1089, 1093 (1981), and St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S. Ct.
2742, 2746-47 (1993).

Under this framework, the plaintiff must establish, by a
preponderance of the evidence, a prima facie case of
discrimination. A prima facie case of race discrimination
under Title VII requires that the plaintiff demonstrate that: (1)
he is a member of protected class; (2) he was qualified for the
position held; (3) he suffered an adverse employment action;
and (4) the adverse action arose under circumstances giving

14a

rise to an inference of discrimination. See McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824 and its progeny.
These requirements for establishing a prima facie case are
“minimal.” Fisher v. Vassar College, 114 F.2d 1332, 1335
(2d Cir. 1997) (quoting St. Mary’s Honor Ctr., 509 U.S. at
506, 113 S. Ct. at 2747; Cronin v. Aetna Life Ins Co., 46
F.3d 196, 203-04 (2d Cir. 1995).

If the plaintiff demonstrates a prima facie case, a
presumption that the employer unlawfully discriminated
against the employee is raised, see Fisher v. Vassar College,
114 F.3d 1332, 1335 (2d Cir. 1997), and the burden of
production then shifts to the employer “to articulate a
legitimate, clear, specific and non-discriminatory reason” for
the adverse employment action at issue. Gallo, 22 F.3d at
1226. If the employer satisfies this burden, the presumption
raised by the prima facie case is rebutted and the burden is
then on the plaintiff to show by a preponderance of the
evidence that the employer’s reason is a pretext for unlawful
discrimination. Kerzer v. Kingly Manufacturing, 156 F.3d
396,401 (2d Cir. 1998).

B. Proof of a Prima Facie Case of Race Discrimination

It is undisputed, for the purposes of defendant’s summary
judgment motion, that plaintiff has satisfied the first two
elements of a prima facie case: (1) plaintiff is a member of a
protected class; and (2) he was qualified for his position as a
custodian with defendant.

The dispute revolves around the third and fourth elements.
Defendant asserts that the plaintiff has not suffered an adverse
employment action, and, even if he had, the alleged adverse
employment action did not arise under circumstances giving
rise to an inference of race discrimination.

15a

More specifically, defendant contends that during the
relevant time period (1998 - 2001), plaintiff worked, on
average, more overtime hours than nine of his Hispanic co-
workers and all but one of his Caucasian co-workers. Because
plaintiff's overtime hours are greater, on average, than the
majority of his Hispanic and Caucasian counterparts,
defendant asserts that plaintiff suffered no adverse
employment action as a matter of law.

Plaintiff's response to this argument is two-fold. First,
plaintiff disputes the number of overtime hours that rename
claims that he worked as compared to the other employees.’
Second, the court discerns from plaintiff’s papers that it is the
missed opportunities for overtime that he was allegedly denied
on account of his race that are the adverse employment
actions suffered, irrespective of the total overtime hours
worked.

3 The court regards the overtime hours that defendant claims
plaintiff worked as true. Defendant has supported its calculation of
plaintiff's overtime hours with documentary evidence reflecting not
only plaintiff’s overtime hours, but also that of his similarly situated
co-workers. Plaintiff self-serving statement that he “disputes the
overtime hours that defendant claims he worked” is insufficient as
a matter of law to rebut the defendant’s evidence. See e.g.,
Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14,
18 (2d Cir. 1995). This rule is particularly applicable here in light
of the fact that plaintiff has failed to provide any contrary evidence
despite his deposition testimony that he has paycheck stubs that
prove that the defendant’s calculation is in error. See Lockhart
Depo. at 86.

i6a

i. Whether Plaintiff Suffered An Adverse Employment
Action Within The Meaning of Title VII

It is well-settled that “[aJn adverse action is one that
affects the terms, privileges, duration or conditions of
employment.” See, e.g., Yerdon v. Henry, 91 F.3d 370, 378
(2d Cir. 1996) (citations omitted). “A materially adverse
change might be indicated by a termination of employment,
a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss in benefits, significantly
diminished material responsibilities, or other indices that
might be unique to a particular situation.” Galabya v. New
York City Bd. of Educ., 202 F.3d 63655, 640 (2d Cir. 2000).

“Adverse action” in Title VII cases has not been defined
“solely in terms of job termination or reduced wages and
benefits, and that less flagrant reprisals by employers may
indeed be adverse. Wanamaker v. Columbian Rope Co., 108
F.3d 462,466 (2d Cir. 1997) “There are no bright-line rules.
Courts must consider the facts of each case to determine
whether the challenged action reaches the level of ‘adverse.’”
(Id.). Moreover, “[i]t is a court’s responsibility to ‘pore over
each case to determine whether the challenged employment
action reaches the level of ‘adverse’.’” Ruggieri v.
Harrington, 146 F. Supp.2d 202, 215 (E.D.N.Y. 2001)

(citations omitted).

The issue here is whether the denial of the opportunity to
work overtime assignments rises to the level of an actionable
adverse employment action under Title VII. The court finds
that it does. While such a denial may not be tantamount to a
termination of employment, the denial of the opportunity to
work overtime assignments affects a term and condition of
employment and may constitute an adverse employment
action. See Austin v. Ford Models, Inc., 149 F.3d 148, 152

17a

(2d Cir. 1998) (finding that allegations of denial of overtime
pay were sufficient to meet element of prima facie case of
disparate treatment); Austin v. Ford Models, 2000 WL
1752966, No. 95 Civ 3731 (AJP), (S.D.N.Y. Nov. 29, 2000)
(“It is also arguable that [plaintiff] suffered an adverse
employment action in not receiving overtime compensation” );
Hall v. South Central Connecticut Regional Water Authority,
28 F. Supp.2d 76 (D. Conn. 1998) (“Making overtime or job
assignments... based upon an employee's gender or race can
constitute actionable discrimination under Title VII”).

While denial of overtime assignments may be an adverse
employment action, such is not the case here. Plaintiff has not
suffered any adverse employment action because his overtime
hours compare favorably with the average number of
overtime hours worked by his Hispanic and Caucasian
counterparts. Moreover, in addition to the plaintiff having
worked more overtime hours than several of his colleagues,
plaintiff was offered the opportunity to work additional “off-
list” overtime and/or “emergency” overtime and declined.
Plaintiff can hardly support a claim of discrimination based on
missed overtime opportunities when he deliberately removed
himself from consideration for such opportunities. There is
simply no evidence to support the claim that race
discrimination is why plaintiff has fewer overtime hours than
some of his Caucasian and Hispanic colleagues. Rather, his
own decision to decline additional overtime assignments, for
whatever reason,’ sufficiently explains why plaintiff's total

‘ Plaintiff apparently believes that “off-list” overtime assignments
violate the collective bargaining agreement. Whether his belief is
correct is irrelevant here because his own declination of overtime
opportunities belies his claim of race discrimination.

a

18a

overtime hours are lower than those of some of the other
employees.

ii. Whether the Alleged Denial of Overtime Opportunities
Occurred

Under circumstances giving rise to an inference of race
discrimination defendant argues that the employment actions
of which plaintiff complains did not occur under
circumstances giving rise to an inference of discrimination.
(Def. Mere. at 8-16). While plaintiff's burden in establishing
a prima facie case of disparate treatment is “de minimus”
McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1995),
he has failed to present any evidence sufficient to support an
inference of race discrimination. This court finds that plaintiff
has not presented any facts sufficient to support the last
element of the prima facie case. Importantly, plaintiff does
not contend that he never received overtime assignments.
Rather, he asserts that the overtime opportunities were offered
to his Caucasian and Hispanic colleagues in disregard of the
seniority-based overtime list. It is this procedure that plaintiff
alleges is discriminatory, irrespective of the actual overtime
hours he worked.

However, plaintiff ignores the critical fact that he
removed himself from receiving additional overtime hours by
refusing those “off-list” opportunities offered to him. This
fact standing alone, defeats plaintiff's claim that his race had
anything to do with his overtime assignments.”

> To the extent that plaintiff asserts that persons other than he may
have been denied the opportunity to work off-list overtime, he lacks
standing to assert such claims. See, e.g., Murphy v. Board of
Education of Rochester City School District, 273 F. Supp. 2d 292,

19a

Although a “‘trial court must be cautions about granting
summary judgment’” when a case turns on the intent of one
party, as employment discrimination claims often do, Gallo
v. Prudential, 22 F.3d at 1224, this court finds that there
simply no evidence of race discrimination here. Accordingly,
the court finds that plaintiff has failed to set forth a prima
facie case of race discrimination.

iii. Legitimate, Nondiscriminatory Reason

Even if the court were to find that plaintiff had established
a prima facie case, defendant has met its burden to articulate
a legitimate, nondiscriminatory reason for the assignments at
issue. More specifically, defendant asserts three reasons: (1)
for efficiency purposes, where there are a limited number of
custodians who work in a particular area of the campus and
that area consistently generates overtime hours, those
custodians may regularly be offered the overtime generated in
their work area instead of referring to the seniority-based lists
(Def. 56.1 Statement at { 34); (2) the custodial foreman, who
is regularly required to oversee certain overtime jobs,
receives overtime even though he is not included on the
seniority-based overtime lists (Id. at { 35); and (3) individuals
with special skills, such as equipment repair, may receive
overtime hours even if they are not included on the seniority-
based overtime lists. (/d. at { 36).

The court finds that the reasons asserted by defendant are
sufficient to satisfy its burden of articulating a legitimate,

302-03 (W.D.N.Y. 2003) (citing Vermont Right to Life Committee,
Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000)).

20a

nondiscriminatory reason for the overtime assignments at
issue.

iv. Nondiscriminatory Reasons Are Pretextual

Because defendant has put forth “a legitimate non-
discriminatory reason” for the overtime assignments at issue,
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142, 120 S. Ct. 2097 (2000) (quoting Texas Dep’t of Cmty
Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089
(1981)), “the burden shifts back to the plaintiff to prove, by
a preponderance of the evidence, that the real reason for the
adverse employment action was discrimination.” Mandell v.
County of Suffolk, 316 F. 3d 368,381 (2d Cir. 2003).

Plaintiff does not satisfy his burden. Plaintiff merely
concludes that defendant’s articulated reasons are a pretext for
race discrimination, but fails to offer any supporting evidence.
In fact, of the three reasons proffered by the defendant,
plaintiff addresses only the “special skill” rationale, and assert
that it is a pretext because one of the highest overtime
earners, James Avellone (who is Caucasian), “is not even
licensed to repair vacuums.” (Def. Mem. at 11). The court
finds that this unsupported claim is insufficient to prove that
the defendant’s reason is a pretext for race discrimination for
several reasons. First, there is no evidence in the record to
support plaintiff's conclusion that the “special skill” rational
corresponds to the overtime assignments worked by Mr.
Avellore or that he worked overtime assignments repairing
vacuums. Second, even if there were such evidence before
this court, there is no evidence establishing that a license is
even required. Simply stated, the unsupported fact that Mr.
Avellone may not be licensed to repair vacuums is wholly
irrelevant to the central issue of whether defendant’s

2la

justification for the manner in which overtime assignments
were made is a pretext for race discrimination.

Accordingly, this court finds that there is no basis to
conclude that defendant’s reasons for making off-list overtime
assignments is a pretext for unlawful discrimination.
Defendant has presented nondiscriminatory reasons for its
assignment of overtime, and plaintiff has not presented
evidence such that a jury could find that he has rebutted this
proffer or established the necessary discriminatory intent by
a preponderance of the evidence. Whether or not the
assignment of overtime was done fairly or even consistently
with the collective bargaining agreement is not relevant,
absent sonic indication that plaintiff's race had anything to do
with such assignments. Nothing in the record indicates
discriminatory animus and plaintiffs evidence has not placed
any of the material issues, those concerning defendant’s
proffered nondiscriminatory reasons for the assignment of
overtime, into genuine dispute. Accordingly, summary
judgment in favor of defendant is appropriate.

CONCLUSION

For the reasons stated herein, defendant’s motion for
summary judgment is GRANTED in all respects. The
complaint is dismissed. SO ORDERED.

Dated: Central Islip, New York
March 29, 2004

/s/
ARLENE ROSARIO LINDSAY
United States Magistrate Judge

22a

APPENDIX C

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

CV-01-6547 (ARL)

{March 29, 2004]

LINDBIRGH LOCKHART,
Plaintiff,

HOFSTRA UNIVERSITY,

)
)
)
V. )
)
)
Defendant. )

)

JUDGMENT

A Decision and Order of Honorable Arlene R. Lindsay,
United States Magistrate Judge, having been filed on March ‘
29, 2004, granting defendant’s motion for summary
judgment, and dismissing the complaint, it is

ORDERED AND ADJUDGED that plaintiff take
nothing of defendant; that defendant’s motion for summary
judgment is granted; and that the complaint is dismissed.

DATED: Long Island, New York
March 29, 2004

23a

ROBERT C. HEINEMANN
Clerk of the Court

By: /s/ Ralph Branciforte

Deputy Clerk

No. 04-1558 JUN 1 7 2005

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

LINDBIRG LOCKHART,
Petitioner,
v.
HOFSTRA UNIVERSITY,
Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CourRT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

AIMEE B. FLoRIN
Counsel of Record
JiLL L. ROSENBERG
Orrick, HERRINGTON
& Sutcurre LLP
666 Fifth Avenue
New York, New York 10103
(212) 506-5000

Counsel for Respondent

194971 ci

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

i
QUESTIONS PRESENTED

1. Whether the well-reasoned grant of summary
judgment by the United States District Court for the Eastern
District of New York in favor of Respondent Hofstra
University in a single plaintiff race discrimination case and
the decision of the United States Court of Appeals for the
Second Circuit to affirm that grant of summary judgment
raises a compelling issue of law so as to justify the “exercise
of [the] Court’s supervisory power” to grant a petition for
writ of certiorari?

2. Whether the District Court properly granted summary
judgment, and the Second Circuit properly affirmed the grant
of summary judgment, dismissing Petitioner’s Title VII claim
because Petitioner could not meet his burden to establish a
prima facie case of race discrimination?

3. Whether the District Court properly granted summary
judgment, and the Second Circuit properly affirmed the grant
of summary judgment, dismissing Petitioner’s Title VII claim |
because Petitioner could not meet his burden to prove that
Respondent’s legitimate, nondiscriminatory reason for the
assignment of certain overtime was a pretext for
discrimination and that discriminatory animus was the real
reason for the manner in which certain overtime was
assigned?

li

TABLE OF CONTENTS

OURS TIONS PRESENTED: 2. cio ck eae eas

TABLE OF CONTENTS

eke a ee ee a ee ee ae ee ee a ay ee ee ae er fen

OPINIONS AND ORDERS BELOW ............

BASIS FOR JURISDICTION «. oon

ASR VR EES oo ces os Ee aw ney ee

o.6 °@. 0 @..0..6: 6.8.2... 8 8) a S82 2-6

SUMMARY OF ARGUMENT ................-

PREIRINNEIES SiS ee ee e

I.

IT.

Il.

THERE ARE NO COMPELLING
REASONS TO GRANT CERTIORARI ..

THE DISTRICT COURT AND THE COURT
OF APPEALS ADHERED TO THIS
COURT’S ESTABLISHED PRINCIPLES IN
GRANTING RESPONDENT'S MOTION
FOR SUMMARY JUDGMENT ..........

SUMMARY JUDGMENT DISMISSING
PETITIONER’S RACE DISCRIMINATION
CLAIM WAS APTRUFRIAl Go... 555.

Page

iil

Contents

Page
A. Petitioner Cannot Prove A Prima Facie
Case Of Race Discrimination And, Thus,
Summary Judgment Was Proper ...... 9
B. Petitioner Did Not Offer Any Evidence
3 Of Circumstances Giving Rise To An
Inference Of Discrimination ......... 10
C. Summary Judgment Was Appropriate As The
Lower Courts Recognized That Petitioner
Advanced No Proof Of Intentional
PSUOOTMINATIOR 6 i i ve at

IE os re va ve Ca ee Uae 13

iv
TABLE OF CITED AUTHORITIES
CASES

Anderson v. Liberty Lobby, Inc.,
We REE oo ee ee nae

Bickerstaff v. Vassar College,
196 F.3d 435 (2d Cir. 1999Y, cert. denied, 530 U.S.
Pa oe oo as ee kek oe

Grillo v. New York City Transit Auth.,
rt et CO OO i i ba ws

Matsushita Elec. Indus. Co. v.
Zenith Radio Corp.,
re Re Ee OP oc eh woes FRO a pees

Reeves v. Sanderson Plumbing Prods., Inc.,
ns Be eG oe a ee

Weinstock v. Columbia Univ.,
224 F.3d 33 (2d Cir. 2000), cert. denied, 540 U.S.
ee I i oe eae ig ke so cok eae ee

Williams v. First Fed. Sav. & Loan,
554 F. Supp. 447 (N.D.N-Y. 1981), aff'd, 697 F.2d
We eg a pa ek a

Cited Authorities

Page
STATUTES
gS Te BS a1 RS aig aint kage re aanmesie crop l
RULES
POR ee Ba NN gy vrs pckie Rh ae 8b ee as Pe

Ue os eee ok ak Ra ke ea 5

l

OPINIONS AND ORDERS BELOW

The Decision and Order of the United States District
Court for the Eastern District of New York granting
Respondent’s motion for summary judgment in all respects
and dismissing Petitioner’s Complaint in its entirety
(Pet. App. B at 5a-21a) and the Judgment of the United States
District Court for the Eastern District of New York ordering
that Respondent’s motion for summary judgment is granted
and that the Complaint is dismissed (Pet. App. C at 22a-23a)
are unreported. The Summary Order of the United States
Court of Appeals for the Second Circuit affirming the
judgment of the District Court granting Respondent's motion
for summary judgment (Pet. App. A at la-4a) 1s reported at
2005 WL 387900 (2d Cir. Feb. 18, 2005).

BASIS FOR JURISDICTION
The Summary Order of the United States Court of
Appeals for the Second Circuit was issued on February 18,
2005. The petition for a writ of certiorari was filed on
May 18, 2005. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254¢1).
RULES INVOLVED

The Rule involved is Federal Rule of Civil Procedure
56(c) which provides, in pertinent part:

Summary Judgment.

.... The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together

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- with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter
of law. ...

STATEMENT OF THE CASE

The crux of Petitioner’s claim is that from 1998 to 2001,
while working as a custodian for Respondent Hofstra
University (“Hofstra” or “Respondent”), Respondent
discriminated against him on the basis of his race (Black) by
denying him overtime hours while approving overtime hours
for custodians who are Caucasian or Hispanic.

Petitioner, who 1s currently employed by Hofstra as a
custodian, has reported to Michael Rocchio, Assistant
Director of the Physical Plants Department at Hofstra.
since 1990. (Pet. App. B at 6a). (Pet. App. B at 6a). In addition
to Mr. Rocchio, there are six other custodial managers,
each with responsibility for his own crew of custodians.
(Pet. App. B at 6a).

The custodial workforce at Hofstra is unionized and the
collective bargaining agreement (“CBA”) governing the
employment relationship between Hofstra and the union
members, including Petitioner, has an express overtime
provision. (Pet App. B at 6a). The CBA provides, in relevant
part, that “[o]vertime shall be computed on a daily and weekly
basis. . .. The Chief Shop Steward shall divide any overtime
in conjunction with management on a voluntary seniority
basis.” (Pet. App. B at 7a).

The CBA does not require that Hofstra maintain a list
containing the names of employees ranked by seniority from

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which the overtime assignments are made nor does the CBA
require that the individual selected for a particular overtime
assignment must be the most senior on a campus-wide basis
or by location worked. (Pet. App. B at 7a).

Each of the seven custodial managers maintains his own
seniority-based overtime list. (Pet. App. B at 7a). Because
the custodians provide coverage seven days a week, 24 hours
a day, multiple lists are used to avoid the assignment of
overtime which conflicts with regular work hours. (Pet. App.
B at 7a). Multiple lists are also used so that custodial
managers can assign overtime jobs to individuals in their
regular work areas. (Pet. App. B at 7a).

Generally, when overtime hours are available, the
custodial manager requests from the Union a number of
people to work that overtime assignment. (Pet. App. B
at 7a). The Union, in conjunction with the custodial manager,
then compiles a list of individuals who will work the
requested overtime and the custodial manager assigns the
individuals to the particular overtime assignment. (Pet. App.
B at 7a-8a).

There are, however, exceptions when the seniority-based
overtime lists are not utilized. (Pet. App. B at 8a).
For example, the custodial foreman is regularly required to
oversee certain overtime jobs and receives overtime pay for
such work even though he is not listed on the seniority-based
lists. (Pet. App. B at 8a). Also, individuals with special skills,
such as equipment repair, may receive overtime assignments
even if they are not included on the seniority-based overtime
lists. (Pet. App. B at 8a). And, when there are a limited
number of custodians who work in a particular area of the
campus and that area consistently generates overtime

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assignments, those custodians may regularly be offered the
overtime assignments in their work area irrespective of the
seniority-based overtime lists. (Pet. App. B at 8a).

In February 1996, Petitioner filed a grievance with the
Union complaining about the distribution of “off-list”
overtime to six particular individuals in violation of the CBA.
(Pet. App. B at 10a). Of those Petitioner claimed received
preferential treatment with respect to the assignment of
overtime, two were Black, Jimmy Adams and Michael Black.
(Pet. App. B at 10a).

Petitioner concedes that “he has received his fair share
of overtime within the past two years” and challenges only
the assignment of overtime from 1998 to 2001. (Pet. App. B
at 10a n. 2). From 1998-2001, Petitioner worked a total of
1156.25 overtime hours. (Pet. App. B at 8a). The average
number of overtime hours during that time period for
Petitioner’s fourteen Hispanic co-workers was //50 hours.
(Pet. App. B at 8a). During that same time period, the average
number of overtime hours for Petitioner's fourteen Caucasian
co-workers was 420 hours. (Pet. App. B at 8a-9a).

In addition to the overtime hours actually worked,
Petitioner was offered the opportunity to work “off-list”
overtime by the Chief Shop Steward, but declined. (Pet. App.
B at 9a). Petitioner was also included on the “emergency”
overtime list which provided him the opportunity to work
additional overtime assignments, but he requested that he be
removed from that list. (Pet. App. B at 9a).

5

SUMMARY OF ARGUMENT

In direct contravention of the Rules of this Court,
Petitioner seeks review of the dismissal of his individual race
discrimination claim despite the fact that he does not assert
— let alone provide any support for — even one of the limited
number of compelling reasons recognized by the Court as
justification for such a grant.

Indeed, by filing ihe instant petition based on his
assertion that fact issues existed such that the lower courts
incorrectly granted summary judgment for Respondent,
Petitioner disregards completely the Court’s explicit
admonishment that “[a] petition for a writ of certiorari is
rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated
rule of law.” Rule 10, Rules of the Supreme Court of the
United States.

Even if, however, the Court did choose to exercise its
supervisory powers to consider the question before it, the
undisputed evidence in the record makes clear that the District
Court correctly found — and the Court of Appeals properly
affirmed — that there were no issues of fact requiring a trial
in this matter. Thus, summary judgment dismissing
Petitioner's Title VII race discrimination claim was
appropriately entered.

In particular, as recognized by the District Court — and
undisputed by Petitioner in his appeal to the Second Circuit
— Petitioner cannot establish even a prima facie case of race
discrimination because he has not suffered any adverse
employment action. (Pet. App. B at 17a). Nor can Petitioner
establish that overtime was distributed under circumstances

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giving rise to an inference of race discrimination where
“he removed himself from receiving additional overtime
hours,” (Pet. App. B at 18a), a fact which Petitioner did not
dispute on appeal.

Further, the District Court properly held that even if
Petitioner had established a prima facie case, Respondent
met its burden of articulating a legitimate, nondiscriminatory
reason for the overtime assignments at issue and, as a matter
of law, that Petitioner offered no evidence to even suggest
that his race “had anything to do with such [overtime]
assignments.” (Pet. App. B at 21a). Again, Petitioner’s appeal
offered nothing to contradict this finding and the
Second Circuit correctly found that “the facts [Petitioner]
alleges raise no inference of discriminatory intent.” (Pet. App.
A at 3a).

Petitioner's purported claim that the courts below
“did not adhere to this Court's established principles
concerning summary judgment,” :s nothing more than a
restatement of his opposition to Respondent’s motion for
summary judgment, which opposition was already rejected
after due consideration by both the District Court and the
Court of Appeals.

The lower courts applied the proper legal standard and
appropriately assessed the evidence in the record in granting
and affirming Respondent’s motion for summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0918%3A1. Public record. Not legal advice.